Capacity: Judge
Further appointments: N/A
First appointed as a judge: 01-11-2017
Gender: Male
Ethnicity: Coloured
Key judgments: As Acting Judge: (1) CEKWANA V S (A523/15) [2017] ZAWCHC 47 (10 MARCH 2017) ; (2) HATTINGH V S (A307/2015) [2016] ZAWCHC 199 (28 OCTOBER 2016)
Candidate Bio
An attorney since 1981, Mushtak Parker founded his own firm in 1992. He has acted in the Eastern Cape High Court (2005) and in the Western Cape High Court in 2016 and 2017.
During one of those stints in Cape Town he came to a wildly different conclusion to his colleagues on the Bench. In Cekwana v S a full bench of the Western Cape High Court heard an appeal against sentencing in which the appellant was convicted for the rape of a 10-year-old girl and sentenced to ten years imprisonment — well below the minimum prescribed life sentence for such an offence.
On appeal, the credibility of the evidence of the complainant, who was the only witness to the rape, was placed in issue.
The matter was initially heard by Binns-Ward J and Parker AJ, who could not agree on the outcome. The appeal was heard a second time, and Binns-Ward J (Henney J concurring) found that the evidence regarding the complainant’s reporting of the alleged rape was “inconsistent and contradictory”, and differed with the minority judgment’s appraisal of the magistrate’s reasoning.
Although Parker noted that the magistrate’s judgment did not ‘necessarily reveal a very scientific approach’ and was ‘robust’, he could not find that the magistrate had misdirected himself in any material respect. Parker found the magistrate’s assessment of the evidence of the complainant had to be presumed to be correct. However, Binns-Ward found the “magistrate’s approach was not ‘robust’; it was – I am sorry to have to say – careless, superficial and misdirected.” Parker was outnumbered and the appeal was upheld.
Parker holds a BProc from the University of Durban Westville and the University of South Africa.
October 2017 Interview
October 2017 – Interview synopsis
Attorney Mushtak Parker’s interview lasted all of 13 minutes — not an unlucky number since he was recommended for appointment to the Western Cape High Court by the Judicial Service Commission (JSC).
Fiona Stewart, Western Cape Premier Helen Zille’s representative on the JSC, asked Parker about comments submitted to the commission by the General Council of the Bar which claimed he was “somewhat intemperate” while acting as a judge.
He said with the “benefit of hindsight” he “could have used words not as strong” but in a particular instance he had been unkind to a murder accused, who was alleged to have killed a young child, because of his “flippant attitude in court”. Parker apologised.
Parker had represented correctional services officers who had been fired by the national department for their refusal to cut their dreadlocks. Supreme Court of Appeal (SCA) President Mandisa Maya enquired after the case since her court had ruled that the warders be reinstated.
Parker said: “I regret to say that [the SCA judgment] has not been fully complied with.” He said he had to prepare fresh papers to ensure his clients were reinstated, and further papers to ensure they received their back-pay.
“What the department has done is pay 85-90% of what is due to them, but has refused to promote them — the struggle continues,” Parker told the commission.
Justice Minister Michael Masuthu said he would follow up on the matter with the relevant authorities.
When asked the usual questions about race and racism, and skewed briefing patterns, Parker did not reveal any new thesis on these matters.
